Chattisgarh High Court
Vijay Laxmi vs Beduram And Anr on 2 August, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 85 of 2012
Reserved on 17/06/2021
Pronounced on 02/08/2021
Vijay Laxmi aged 44 years daughter of late Shri Jagdish Prasad, caste
Brahmin, resident of village Dagori, Tahsil Bilha, District Bilaspur (CG)
(Plaintiff)
---- Appellant
Versus
1. Beduram aged 55 years, son of Kolhau caste Kurmi, resident of village
Dagori, Tahsil Bilha, District Bilaspur (CG)
2. State of Chhattisgarh through the District Collector, Bilaspur (CG)
(Defendants)
---- Respondents
For Appellant : Shri Somnath Verma, Advocate
For Respondent No.1 : None, though served
For Respondent No.2/State : Shri Devesh Verma, Govt. Advocate
Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal
C A V Judgment
1. This appeal has been preferred by the Plaintiff under Section 96 of the
Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'),
questioning the legality and propriety of the judgment and decree dated
25.01.2012, passed in Civil Suit No.21-A/2011, whereby the learned trial
Court has dismissed the Plaintiff's claim for specific performance of
contract. The parties to this appeal shall be referred hereinafter as per
their description before the Court below.
2. Briefly stated, the facts of the case, are that the Plaintiff instituted a suit
claiming specific performance of contract submitting, inter alia, that an
agreement to sale was executed by Defendant No.1 in her favour on
13.05.2010 with regard to the part of his Khasra No.1026, admeasuring
area 0.73 acres situated at village Dagori, Tahsil Bilha, District Bilaspur
(CG), agreeing to alienate the same for a consideration of Rs.2,20,000/-
upon receiving earnest amount of Rs.25,000/- from her by delivering the
possession of it. It is pleaded in the plaint that as per the terms and
conditions stipulated therein, the registered deed of sale was required to
be executed within a period of 15 days from it and despite her several
requests being made and when it was not executed, a legal notice dated
21.06.2010 was served upon him with a request for its execution. He,
however, has, failed to execute the registered deed of sale in her favour
despite the service of notice, therefore, she has been constrained to
institute the suit in the instant nature, instituted on 16.08.2010.
3. Despite service of summons of the suit, Defendant No.1 failed to appear,
therefore, he was proceeded ex parte by the trial Court.
4. In support, the Plaintiff has examined herself and both the attesting
witnesses of the alleged agreement to sale and, the trial Court after
considering the same, dismissed the suit by holding, inter alia, that since
the Khasra number and area of the suit land as mentioned in the alleged
agreement to sale are different with that of the revenue papers like
Kishtbandi Khatoni(Ex.P-2) and Khasra Panchashala(Ex.P-3) as
produced by the Plaintiff, therefore, it cannot be said that the Defendant
No.1 was competent to alienate the same. As a consequence of it, the
claim has been dismissed, which has been impugned by way of this
appeal.
5. Learned counsel for the Appellant/Plaintiff submits that the finding of the
Court below holding that the Khasra number and area mentioned in the
alleged agreement to sale and the revenue papers of it are differently
mentioned, therefore, the said Defendant was not competent to alienate
the same is apparently contrary to law. While inviting attention to the
alleged agreement to sale dated 13.05.2010, it is contended by him that
the vendor had agreed to alienate a piece of his land bearing Khasra
No.1026, admeasuring 0.73 acres while mentioning its boundaries,
therefore, the trial court ought not to have non-suited the Plaintiff merely
on the ground that the Khasra number and area are differently mentioned
there in the alleged agreement (Ex.P-1) and its revenue papers (Ex.P-2
and Ex.P-3), as such.
6. No one appears on behalf of the Defendant/Respondent No.1 despite
service of notice.
7. I have heard learned counsel for the Appellant/Plaintiff and perused the
entire record carefully.
8. The question which arises for determination in this appeal is as to
whether the trial Court has erred in dismissing the Plaintiff's claim for
specific performance of contract merely on the ground that the Khasra
number and the area of it has been differently mentioned in the alleged
agreement to sale (Ex. P-1) and its revenue papers (Ex.P-2 and Ex.P-3)?
9. From perusal of the record, it appears that an agreement to sale dated
13.05.2010 (Ex.P-1) was executed by Defendant No.1 in favour of the
Plaintiff agreeing to alienate his part of Khasra No.1026, admeasuring
area 0.73 acres of land while mentioning its boundaries thereon in
presence of the two witnesses for a consideration of Rs.2,20,000/- upon
receiving earnest amount of Rs.25,000/- from her. According to the
Plaintiff and the attesting witnesses of the alleged agreement to sale
(Ex.P-1), the alleged suit land as described therein was to be sold within
a period of 15 days from its execution as stipulated therein. The suit land
as described in the alleged agreement to sale was the part of Khasra
No.1026, admeasuring area 0.73 acres and was described by its
boundaries, and in revenue papers (Ex.P-2 and Ex.P-3), it has been
shown to be recorded in the name of Defendant No.1 as Khasra
No.1026/1, area 0.295 acres. It is true, as evidenced by those
documentary evidence that there are some discrepancies in the
particulars of the land in question sought to be alienated but, identity of it
has not been disputed by the Defendant No.1. That apart, the alleged
Khasra number is recorded in the name of Defendant No.1 and in
absence of its rebuttal, it cannot be said, as observed by the trial court,
that the Defendant No.1 was not competent to alienate the same.
10. Considering the unrebutted averments made in the plaint, and
considering further the boundaries mentioned in the alleged agreement to
sale (Ex.P-1) with regard to the part of Khasra No.1026, admeasuring
area 0.73 acres, vis-a-vis, showing the name of Defendant No.1 in the
revenue papers (Ex.P-2 and Ex.P-3), it cannot be said that the said
Defendant was not competent to alienate the same as per the terms and
conditions stipulated in the alleged agreement to sale dated
13.05.2010(Ex.P-1).
11. Consequently, the appeal is allowed and the Appellant/Plaintiff is
accordingly held to be entitled to get the sale-deed executed in her favour
with regard to the part of Khasra No. 1026, admeasuring area 0.73 acres
situated at village Dagori, Tehsil Bilha, District Bilaspur (CG) as
mentioned in the alleged agreement to sale dated 13.05.2010 (Ex.P-1).
12. A decree be drawn accordingly. Sd/-
(Sanjay S. Agrawal)
JUDGE
sunita
